Rubino v. J M Builders Sons, No. Cv 96 0389122 S (Oct. 27, 1998)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISIONIn 1990, the plaintiff contracted with the defendant, a CT Page 12031 home builder, to construct a substantial addition to her home at 158 Heron Drive, in the town of Orange. This work was completed by the fall of that year.

On April 16, 1996, a torrential rainfall occurred in the New Haven area and the plaintiff discovered that her home was flooded. She states that the flooding was caused by the outlet hose from her basement sump pump pumping water into her basement instead of to the outside of the house.

The plaintiff claims that the defendant is responsible for her loss, arguing that he and his employees and subcontractors were the last persons to perform any work on the premises.

The defendant denies any responsibility for the loss and denies placing the outlet hose inside the building. He argues that a hole in the foundation wall to accommodate the outlet hose was not made by him but by someone else, and that person worked on the outside, punching the hole into the basement area. He also claims that other workmen were on the premises in 1990 and could be the responsible parties.

DISCUSSIONIn a dispute of this type where the court hears only the plaintiff and the defendant, the total surrounding circumstances take on particular significance. And, the plaintiff has the burden of proof as to all the elements of her cause of action.

The plaintiff points to no particular work performed by the defendant to effect the sump pump and its operation. The defendant denies he had anything to do with it.

Of interest is the fact that the plaintiff had no problem with water from her sump pump between 1990 and 1996. She suggests that up to the time of deluge in April 1996, the water was being pumped inside but was not enough to be visible.

The court has trouble with this theory for several obvious reasons — the mere presence of two sump pumps on the premises, this one and one in the garage, suggests an existing water problem.

While the 1996 deluge was exceptional, living in this CT Page 12032 area one knows that we have frequent heavy rainfalls, especially over such a long period of time. It is hard to believe the sump pump was not at work or that the basement walls "absorbed" the flow from the outlet and that there was no sign of this condition on the sheet rock wall depicted in several exhibits.

These circumstances suggest to the court that the April 16, 1996 problem was a recent one and that the pump and outlet had been working but the outlet hose disengaged from the hole in the foundation wall, and began discharging into the basement behind the sheet rock wall.

However, this explanation is conjecture as is the plaintiff's proposal. The court can find nothing in the factual pattern to link this defendant with the damage caused. The passage of so much time and the lack of prior malfunctioning is fatal to the plaintiff's theory that the defendant's work in 1990 created a hazard which remained dormant until April 16, 1996.

CONCLUSIONThe plaintiff, not having sustained the burden of proof, judgment must enter for the defendant.

Anthony V. DeMayo, J.